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This chapter examines the system for creation and enforcement of security interests over personal property. It considers the operation of the Personal Property Securities Act 2009 (Cth) (PPSA), examining: (1) the Act’s purpose and overall design; (2) the definition of security interests; (3) the kinds of security interests it governs; (4) what constitutes the taking of good security – including explanation of the concepts of attachment and perfection of interests; (5) the extinguishment rules; (6) the fate of certain proprietary interests, such as fixed and floating charges under the Act; and (7) the principles and rules of priority of interests as they operate under the Act. The chapter also examines how the Act approaches the recognition of a security interest as a matter of substance rather than form. Emerging PPSA law cases are referred to where appropriate.
This chapter examines the topic of bailments. It sets out the basic concept of a bailment and the required factors that must be in place for a bailment relationship to exist. The chapter then examines sub-bailments, the categories of bailment, the duties common to all bailments, and the relationship between bailment and other legal categories. The issues pertaining to bailments and the Personal Property Securities Act 2009 (Cth) are discussed in .
This chapter addresses the topic of personal property. It first addresses the fundamental notion of property. It then explores how the scope of personal property has become more expansive as novel challenges to existing notions of property have arisen over time. The chapter considers the important distinction between real property and personal property. Sub-classifications of personal property are considered, including the distinction between chattels real and personal, choses in action and choses in possession. The chapter explores various types of possession and interference with possession giving rise to actions for trespass, conversion and detinue. The chapter concludes with a discussion of how the nature of personal property rights can be lost through intermixture, accession or by becoming a fixture.
Fully revised and updated, Australian Commercial Law offers a comprehensive, accessible introduction to key aspects of Australian commercial law. Part 1 introduces the fundamentals of contract law and business structures before examining the sale of goods, agency, bailment and personal property. Part 2 covers the Australian Consumer Law, focusing on areas important to commercial entities that interact with consumers. Part 3 examines international commercial law, providing a detailed introduction to the World Trade Organization and to agreements central to trade between countries. The second edition includes: detailed discussion of key concepts in commercial law; four new chapters on contract law basics, business structures, bankruptcy and international commercial law; thorough integration of digital and e-commerce transactions; and end-of-chapter discussion questions designed to test reader knowledge of key points and themes. Written in a clear and concise style by an expert author team, Australian Commercial Law is an indispensable resource for students seeking a comprehensive understanding of commercial law.
This chapter deals with the topic of the sale of goods. There are Sale of Goods Acts in each state and territory in Australia. All of these Acts are broadly the same in their terms and structure. They are all based on the UK Sale of Goods Act 1893. As such, UK court decisions are very relevant to the interpretation of Australian legislation. The sale of goods is regulated in Victoria by the Goods Act 1958 (Vic) (‘Goods Act’), and the chapter uses this Act as a model with which to explore the various issues pertaining to the sale of goods.
This chapter considers insurance as the formation of a contract of risk management between two parties: the insurer and the insured. It considers the governance of that relationship of insurance by the statutory regime contained in the Insurance Contracts Act 1984 (Cth), and relevant amendments under the Insurance Contracts Amendment Act 2013 (Cth). It addresses the formation and interpretation of the contract of insurance, and the duty of utmost good faith and disclosure, as they apply to both insureds and insurers. The construction of insurance contracts is examined by reference to the principles of interpretation applicable to commercial contracts broadly, and insurance contracts in particular. The chapter also addresses the types of breaches commonly encountered in insurance cases. Finally, it considers the remedies available to insureds and insurers for instances of misrepresentation, fraud, non-disclosure, and breach of policy terms.
This chapter engages with international aspects of commercial law. It provides a background introduction to private international law, and an overview of recent developments in major treaties on international trade. The recent US–China trade conflicts and Brexit are also referred to. The chapter then focuses on two specific topics in relation to international sales contracts. The first of these is the Australian rules of private international law in relation to contracts with a foreign element. The chapter examines the theory of private international law, the main treaties on international trade (including Brexit and the Australia–UK Free Trade Agreement), and the key principles for determining the proper law of contract under private international law. The second topic is the international sale of goods. The chapter focuses on the Convention on Contracts for the International Sale of Goods 1980 (CISG, or Vienna Convention), and the Incoterms of the International Chamber of Commerce (ICC).
The advent of the Australian Consumer Law (ACL) as a law having uniform application throughout Australia will have a significant impact upon some areas of contract law. Most notably, the ACL will impact upon statutory unconscionability, implied terms in the form of consumer guarantees, misleading or deceptive conduct (the statutory corollary to the common law doctrine of misrepresentation) and unfair contract terms. The last topic is the focus of this chapter: the unfair contract terms regime of the ACL, as provided for in ss 23–28, sets up a mechanism for determining whether terms in standard form consumer or small business contracts are unfair.
This chapter addresses the fundamental rules of contract law and introduces nine of the significant regulators operating within the Australian commercial landscape. Contracts are of enormous importance in most established economies as they provide a means by which promises made as part of a commercial bargain can be legally enforced. Contracts also underlie a large number of transactions entered into by the principal commercial regulators in this country, and so the chapter provides a useful backdrop against which we can explore more specific concepts in Australian commercial law.
This chapter engages with the substantive law pertaining to misleading or deceptive conduct. The statutory prohibition on misleading or deceptive conduct first appeared in the now defunct Trade Practices Act 1974 (Cth) (TPA). Section 52 of the TPA provided that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. The TPA has now been repealed. In place of the TPA has emerged the Australian Consumer Law (ACL). The ACL now contains the same prohibition on misleading or deceptive conduct. The ACL is contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth). The s 52 TPA equivalent is s 18 of the ACL. Section 18 provides that a person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. This chapter looks solely at misleading or deceptive conduct under s 18 of the ACL.
This chapter deals with the legal issues associated with the transfer of property and title in sale of goods contracts. The various state and territory Sale of Goods Acts regulate the way in which property is transferred from a seller to a buyer. However, there are circumstances where the parties to a contract of sale will be unclear as to when property will pass between them. Under these circumstances, the transfer of property will need to be regulated by one of the five general rules set out in the Sale of Goods Act. Similarly, there may be circumstances under which a non-owner will purport to transfer ownership in goods. Should this occur, the law will have to seek to do justice between one of two innocent parties: the true owner and the third party buyer without notice. The various Sale of Goods Acts contain rules determining when one party or the other prevails. For the purposes of this chapter, the sale of goods legislation referred to is the Goods Act 1958 (Vic) (‘Goods Act’).
Insolvencies are a consequence of capitalist economies and the market factors that underpin and drive them, including competitive behaviours, and the appetite for and bias towards risk, limited social and material resources (among them, credit), and the asymmetrical relationship of expectation to capacity. Insolvency always has some – and may have vast – private, public, institutional and systemic consequences. The distinction between insolvency as it relates to corporations, and bankruptcy in relation to persons, is made in the Australian Constitution. Insolvency and bankruptcy occur when corporations, businesses or persons are unable to pay their debts when and as they fall due. The term 'bankruptcy' is applicable to personal insolvency, while insolvent corporations or businesses go into liquidation. Bankruptcy laws provide the framework within and procedures by which the failure of debtors to pay their debts can be handled in an organised and efficient manner, making similar provisions for corporations, businesses and persons, while at the same time recognising the differences between the subjects of the processes.
This chapter explores the topic of contracts of guarantee. Contracts of guarantee are utilised in a range of consumer and business contexts to minimise a lender’s risk in situations where the borrower lacks sufficient assets to utilise as security, or where money is lent to inherently risky ventures. Guarantees enable access to credit in situations where the borrower lacks a credit history or cannot secure a loan because they lack assets. A lender to a corporation will require a guarantee because of the risks posed by the nature of business itself, and by use of the corporate structure, which prevents financiers accessing assets vested in shareholders and beneficiaries. Guarantees reduce the cost of borrowing by reducing the lender’s risk in providing loaned money, and by relieving the lender of the need to undertake costly risk assessments. Such costs would otherwise be passed on to the borrower through increased interest rates on borrowings.